Brickhouse Mobile Sued by Mainstream Company

DENVER — Adult-themed wireless distributor Brickhouse Mobile has seen considerable success during its first year in business, so much so that mainstream software company Brickhouse Software is suing over trademark infringement.

Representatives at New Jersey-based Brickhouse Software, which has been in business for more than 12 years, said Brickhouse Mobile’s growing success in the porn business could severely tarnish the “goodwill and respect” of their company due to the fact that they share the Brickhouse name.

“People are calling here for them,” said Brickhouse Software President Jon Matcho, whose company branched into automated content applications for wireless customers three years ago. “The first call I got, I actually thought it was a potential prospect.”

Since its launch in February, Brickhouse Mobile has signed deals to work with a plethora of adult content stars, including Tawny Roberts, Sky Lopez, Devon, Jessica Jaymes, Stephanie Swift and Monica Mayhem. The company has also pushed hard in recent months to ramp up its pool of content for numerous WAP sites, signing New Frontier Media, Wicked Pictures, Suze Randall, Falcon Studios, Homegrown Video and Aria Giovanni, to name a few.

Brickhouse Mobile also plans to offer cell phone ring tones that sound like porn stars in the midst of orgasmic pleasure, or “moantones,” something Matcho is none too happy about.

“We've put a lot of money in the brand from day one when we were just a startup,” he said. “There's already been some blurring and confusion [with the name].”

Matcho said he is worried that Brickhouse Software clients, many of whom include “respected, publicly traded companies,” would think the two companies are related.

He also said attempts were made to resolve the issue outside the courts.

“We tried to resolve it amicably, but [Brickhouse Mobile] just simply refused,” Matcho said.

Representatives at Brickhouse Mobile were not available for comment by press time.

To prove their case, Brickhouse Software has to prove what the courts refer to as “likelihood of confusion.” In other words, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to where the goods come from.

Copyright expert and attorney Joseph Briggady told XBiz that proving infringement is often difficult.

“In blatant cases it is easy,” Briggady said. “Like if I make a computer and call it ‘Apple’ I’m obviously infringing on the company’s trademark. But if I start a company in a completely different industry, say ‘Apple Records,’ I’m not doing anything wrong.”

The difficulty, Briggady said, comes from all the cases in-between the extremes, which he said the Brickhouse case falls into.

“If they can prove a number of customers confused the two companies, that alone is often enough to win the case,” he said.